The State of Western Australia v D'Rozario [No 2]
[2020] WASC 201
•8 JUNE 2020
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: THE STATE OF WESTERN AUSTRALIA -v- D'ROZARIO [No 2] [2020] WASC 201
CORAM: FIANNACA J
HEARD: 3 JUNE 2020
DELIVERED : 3 JUNE 2020
PUBLISHED : 9 JUNE 2020
FILE NO/S: DSO 1 of 2020
BETWEEN: THE STATE OF WESTERN AUSTRALIA
Applicant
AND
PAUL ANTHONY D'ROZARIO
Accused
Catchwords:
Dangerous sexual offender - Breach of undertaking - Application for an interim supervision order
Legislation:
Dangerous Sexual Offenders Act 2006 (WA)
Result:
Orders made
Application granted for interim supervision order
Category: B
Representation:
Counsel:
| Applicant | : | Mr B Meertens |
| Accused | : | Mr S Rafferty |
Solicitors:
| Applicant | : | Director of Public Prosecutions (WA) |
| Accused | : | Seamus Rafferty Barrister and Solicitor |
Case(s) referred to in decision(s):
The State of Western Australia v CA [2020] WASC 164
The State of Western Australia v D'Rozario [2020] WASC 187
FIANNACA J:
(These reasons were given contemporaneously and have been edited from the transcript.)
Background
On 24 January 2020, I conducted the preliminary hearing of an application under s 8 and s 14 of the Dangerous Sexual Offenders Act 2006 (WA) (the Act) for orders that the respondent be subject to a continuing detention order or a supervision order, as provided for in div 2 of the Act, on the basis that he is a serious danger to the community, in that, if he is not subject to one of those orders, there is an unacceptable risk that he will commit a serious sexual offence as defined in the Act. At the conclusion of the hearing, I was satisfied that there were reasonable grounds for believing that the court might find that the respondent is a serious danger to the community.[1] As a consequence, I made orders, including the following:
(1)The application for a div 2 order pursuant to s 17(1) of the Act be heard on 4 and 5 June 2020;
(2)The respondent undergo examinations by two qualified experts, namely psychiatrists, Dr Peter Wynn Owen and Dr Mark Hall, for the purposes of preparing the reports as required by s 37 of the Act.
[1] The State of Western Australia v D'Rozario [2020] WASC 187 (D'Rozario).
The applicant had applied for an order that the respondent be detained in custody pursuant to s 14(2)(b)(i) of the Act pending the determination of the application at the div 2 hearing. I adjourned that application to 28 February 2020 and requested a report from the Department of Justice (the Department) as to the respondent's suitability for release on an undertaking and an assessment of the suitability of the proposed residential address.
On 28 February 2020, after considering the report prepared by the Department and hearing from counsel for the applicant and respondent, I ordered that the respondent be released at the conclusion of the sentence he was then serving, subject to the conditions of an undertaking set out in the schedule to that order (the undertaking). Having provided brief reasons for my decision on each occasion I made the orders on 24 January 2020 and 28 February 2020, I subsequently published detailed reasons on 29 May 2020.
The respondent signed the undertaking and was released into the community on 5 March 2020. Since then, he has been residing with his partner, Ms B, at the address specified in the undertaking.
The dates I set for the div 2 hearing were subsequently vacated by consent for reasons I will explain shortly. In effect, the application for an order under div 2 has been adjourned sine die.
The applicant now applies for an interim supervision order under s 27A(5) of the Act. In the alternative, it applies for an interim detention order under s 14(2)(b) of the Act.
There are two reasons for the application. The first stems from an apparent conflict between the wording of the order releasing the respondent on the undertaking and the wording of the undertaking as to the duration of the undertaking. If the wording of the order takes precedence, the undertaking expires on 4 June 2020, after which the respondent would not be subject to any conditions while in the community pending the hearing of the div 2 application.
The second reason for the application is that, even if the undertaking were to continue to have effect, there are inadequate means to deal with any contravention by the respondent of the conditions of the undertaking, and there are alleged to have been a number of contraventions already.
The unsatisfactory nature of a conditional undertaking in circumstances such as those of the respondent was a matter I discussed in The State of Western Australia v CA [2020] WASC 164 (CA) at [27] to [33]. I there expressed a preference for an interim supervision order to be made in circumstances in which an undertaking may previously have been considered appropriate. In fact, if the respondent had not been in custody when the order was made on 28 February 2020, an undertaking would have been unnecessary and inappropriate, given the availability of an interim supervision order under s 27A(5).
The conflict between the order and the undertaking arises from the fact that, although the introductory paragraph of the undertaking refers to the respondent undertaking to abide by its conditions 'until the final determination of the application', the order I made was that the respondent be released on the undertaking 'until 4 June 2020'.
It is not necessary to resolve the question whether the undertaking, by its terms, continues in effect until the determination of the application for the div 2 order, notwithstanding the temporal limitation of the order made on 28 February 2020. That is because there are good reasons, in any event, why an interim supervision order should be made if I am satisfied that it is appropriate for the respondent to remain in the community pending the div 2 hearing. Those reasons relate to the need to ensure that any contravention of the conditions to which the respondent is subject while in the community can be met with suitable sanctions pursuant to a prosecution for an offence under s 40A of the Act, and can be dealt with by bringing the respondent before the court under the contravention provisions of the Act. That approach is consistent with the views I expressed in CA.
It is necessary to outline the circumstances that have resulted in the making of the application.
The evidence in these proceedings
The evidence in these proceedings consists of two affidavits and annexures.
The first is an affidavit of Brent Douglas Meertens, a lawyer with the Office of the Director of Public Prosecutions (DPP), who also appeared as counsel in these proceedings. The affidavit was affirmed on 27 May 2020. Apart from referring to matters that were brought to his attention by officers of the Department, more specifically the Community Offender Monitoring Unit of the Department (COMU), Mr Meertens also annexed the report of Dr Hall, which was prepared on 20 May 2020.
The other evidence is an affidavit of Kyle David Jarvie, who is a Senior Community Corrections Officer (SCCO) in the employ of the Department, more specifically with COMU. That affidavit was affirmed on 2 June 2020 and deals, in some detail, with matters that are said to constitute contraventions by the respondent of the conditions of his undertaking.
Why the div 2 hearing dates were vacated
Mr Meertens, in his affidavit, outlines the circumstances in which the dates that I had set for the div 2 hearing were vacated.
Dr Wynn Owen, who is one of the psychiatrists who is to provide a report for the div 2 hearing, indicated to the DPP, on 20 May 2020 it would appear, that he had spoken to Mr Jarvie and had become aware of telephone calls that had been made by the respondent to his partner Ms B, which revealed the circumstances of their relationship in a light that might be regarded to be different to the way in which the respondent had portrayed, or was portraying, the relationship. Dr Wynn Owen decided in those circumstances that he needed to listen to the calls, because they were potentially 'invaluable information' that could be significant in the overall estimate of the respondent's risk of sexual re‑offending.
What happened after that, in summary, was that Dr Wynn Owen requested that all prison calls made by the respondent be obtained. It was determined that there were in excess of 16,000 calls recorded, from the period between mid‑2017 until the respondent's release on the undertaking.
It appears Dr Wynn Owen considers that the whole of that history of communication between the respondent and Ms B may be of relevance to his assessment of the respondent's risk of re‑offending. In other words, there may be information in those calls that will assist him to understand the nature of the respondent's relationship with Ms B and the impact that may have on his risk of re‑offending.
In any event, the need to obtain all of those calls, which had to be done by the issuing of a summons, and for Dr Wynn Owen to review those calls, meant that the div 2 hearing could not proceed on 4 and 5 June 2020.
It was in those circumstances that the hearing dates were vacated, and the matter has been adjourned for new dates to be set. In light of what has been said about the need for Dr Wynn Owen to review the telephone calls and then make available to Dr Hall such calls as he considers may be of relevance to Dr Hall's consideration of the respondent's risk, it is simply unknown, at this stage, when the matter might be relisted. It follows that there may be some considerable delay before the div 2 hearing can proceed.
Alleged contraventions
I turn then to the alleged contraventions by the respondent of the conditions of his undertaking to the court, on which he was released on 5 March 2020. They consist of three broad areas of alleged contravention. The first involved the respondent driving through an exclusion zone, which I will explain shortly. The second involved the deletion of data from the respondent's mobile telephone, contrary to his obligation under the undertaking to maintain data on the telephone. Thirdly, there is alleged to have been a failure by the respondent to comply adequately with his obligation to maintain a diary of his movements, activities and associations. In that regard, there were three particular incidents that were said to evidence that failure, being: an occasion when he had contact with two friends and made no mention of that in his diary; an occasion when he stopped at a woman's place and made no mention of that in his diary; and an occasion when he was at a Bunnings store with Ms B and a second woman. In respect of the latter, it would appear the respondent mentioned that he was at the Bunnings store, but he did not say that there was a third person with him and Ms B at the store.
The alleged contraventions were not contested in these proceedings, in the sense that the respondent did not seek to put before the court any additional evidence. That is understandable, given that the primary application made by the applicant is for a supervision order, which the respondent does not oppose. In fact, the respondent accepted that the proposed conditions of the supervision order would all be appropriate.
It seems that, ultimately, the real question will be what conclusions can be drawn from the alleged contraventions. There may be a dispute about that at the div 2 hearing. It seems to me, however, that there are a number of conclusions that can be drawn on a preliminary basis. I will come to those after outlining the alleged contraventions by reference to Mr Jarvie's affidavit.
First alleged contravention
In respect of the first alleged contravention, condition 7 of the undertaking states that the respondent is to be subject to electronic monitoring on the same terms as set out in s 19A of the Act. The undertaking also required the respondent to comply with any lawful directions given to him by a CCO.
On 5 March 2020, Ms Comery, an SCCO, issued the respondent with a written lawful direction, stating that he was not to enter any of the geographical exclusion zones outlined in maps provided to the respondent, at any time, unless otherwise directed by a Community Corrections Officer (CCO). One of the zones that was outlined was the suburb of Forrestfield. The respondent signed the written lawful direction and was provided with a map of the outlined area, which he also signed on 5 March 2020.
On 27 March 2020, the respondent's global positioning system (GPS) electronic monitoring device provided tracking data that showed that the respondent entered the Forrestfield exclusion zone at 7.39 am. He then left the zone, according to the GPS tracking data, at 7.42 am. The respondent travelled on Leach Highway and then on to Tonkin Highway. He remained on Tonkin Highway for the duration of the time that he was in the exclusion zone. In other words, there is no suggestion that he stopped at any stage in Forrestfield. He drove through Forrestfield, along Tonkin Highway.
Ms Comery immediately tried to contact the respondent by telephone, but was unsuccessful. She left a voice message. The respondent subsequently returned the call. He was asked why he had driven through the exclusion zone. The information from Ms Comery, conveyed by Mr Jarvie in his affidavit, is that the respondent told her he was on his way to business premises in Maddington to drop his father's car off. He said, 'I thought it wouldn't pick me up when going that fast. You will be able to see I was going fast.' He also said to Ms Comery, 'I just didn't think. I'm stressing out a lot now.' He also said that he was very sorry.
Later that morning Ms Comery received a telephone call from the respondent who told her that he thought Tonkin Highway was in Wattle Grove and not Forrestfield. He further said that he had already called an officer at the Sex Offender Management Squad (SOMS) and he had also spoken with his lawyer to advise them of the situation. He said that he was not driving his own vehicle, therefore he did not have his exclusion zone maps with him at the time of entering the exclusion zone. Later still that morning, in a further telephone call, the respondent said that upon returning home he reviewed his exclusion zone map for Forrestfield. He said that Tonkin Highway is not specifically labelled on the map. He made the comment that he could see a road on the map which he thought could be Tonkin Highway but that he was not sure.
Insofar as that particular matter is concerned, the first thing that can be said is that there is no suggestion that it was an incident that elevated the respondent's risk of committing a serious sexual offence. It occurred over a very short period of time and, as I said earlier, it simply consisted of the respondent driving through a zone from which he was excluded.
In my opinion, the respondent appears to have been frank at first in saying to Ms Comery that he did not think that he would be picked up, because of the speed at which he was travelling. He also said that he was feeling stressed and he apologised. What is of concern in that regard is that the respondent appears to have been prepared to breach the obligation to stay out of the zone, because he thought that he would not be detected. That is not to suggest that he did so for a sinister purpose; quite the contrary, in light of the facts as I have outlined them. Nevertheless, it does show an approach to his obligations under the undertaking that is concerning.
What is also of concern is the conduct that followed. One might conclude that the respondent subsequently attempted to find a way to suggest that perhaps he was not in breach of the obligation, when he had initially acknowledged, in effect, that he was, given what he said to Ms Comery in the first call. As I will explain later, together with other aspects of the alleged non‑compliance with the conditions, that does raise a concern about the respondent's attitude to his compliance - whether he might be resistant to obligations that are placed on him and engage in the testing of boundaries.
The second alleged contravention
In my opinion, the next alleged contravention is the one that is of greater significance.
Condition 41 of the undertaking stated:
With respect to any computer or other device that is connected or capable of connecting to the internet in your possession, or that has been used by you to access the internet, [you must] not delete or otherwise remove and/or disguise or cause to be removed and/or disguised any search histories or logs capable of identifying your activities on that device without the approval in advance by a CCO or police officer.
On 9 April 2020 the respondent attended the East Perth Adult Community Corrections Centre for a scheduled supervision session with Mr Jarvie. During that session Mr Jarvie asked to access the contents of the respondent's mobile telephone. He was permitted to do so by condition 42 of the undertaking, which read that the respondent was to:
Permit a CCO or WA police officer at any location as nominated by them to access any computer or other device capable of storing digital data for the purpose of ascertaining your computer activities, and provide to the CCO or WA Police upon request any usernames and/or passwords or any other device login means required for such access.
Mr Jarvie asked to access the data on the respondent's mobile telephone, to confirm that he had been compliant with condition 41 and other conditions related to his possession of an electronic device. The respondent provided the mobile telephone to Mr Jarvie to check.
In summary, without going into the details of what took place as described by Mr Jarvie in his affidavit, he checked the call history log on the mobile telephone and the messages that had been received by the respondent. He noticed that there were no received text messages shown prior to 7 April 2020. He then looked at the dialled call history and noticed that there were no calls in the call log prior to 9 April 2020. In fact, it seems the last information that was showing related to calls that were made that day. There was also an examination of the phone book in the telephone, but it seems to me that is not a matter of particular significance, given the allegation in respect of the deletion of messages and the call history log.
Mr Jarvie asked the respondent to explain the deletion of the logs. He says that the respondent told him he had accidentally deleted the text messages when his partner was messaging him, as his phone had become full. He claimed that he had intended to delete one message, but that his action deleted all the messages and that as soon as he had deleted the messages he thought, 'Shit.' He also claimed that his phone had 'stuffed up' before and he pulled the battery out of the phone. He claimed that had resulted in all of his calls being deleted from the log.
It is not necessary to draw any conclusions about the explanations given by the respondent, although they do appear to test the boundaries of plausibility. What is important is that he has not taken steps to ensure that he was strictly compliant with the obligation to maintain the messages and call history on his telephone.
A further matter that is of concern, again indicating resistance to the application of the conditions to his activities, is that the respondent disputed whether condition 41 applied, because his phone was not connected to the internet. Mr Jarvie informed him, quite properly, that the condition applied to devices capable of being connected to the internet and the telephone had Bluetooth capabilities. He said that he had previously discussed that matter with the respondent on 12 March 2020.
The fact that the respondent disputed the application of condition 41 might also be a relevant consideration, in due course, in determining whether he deliberately deleted the data and the phone call log, or whether it occurred by accident, as he claimed in respect of both items.
The respondent had not been given permission to delete the data. It appears the police were able to confirm he had deleted data and call records by reference to the respondent's call charge records. It might be thought, therefore, that there is a means by which his compliance with a condition of that kind can be checked. One might expect that, having had this particular experience, the respondent would not ever engage again in any activity that might result in the deletion of data and his call history.
The respondent was given a further direction in respect of that matter by Mr Jarvie, which was to the effect that he was 'not to delete, disguise, remove or destroy, or allow any of those to occur, any data from any mobile communication devices owned or used by [him]'. The direction, which has further aspects, is now reflected in one of the conditions in the supervision order.
The third area of alleged contravention
The third area of alleged contravention, as I noted earlier, is the failure by the respondent to comply adequately with his obligation to maintain a diary.
Condition 49 of the undertaking provided that the respondent was to maintain 'a daily diary of [his] movements, activities and associations, if and as directed by the CCO, and present this diary to the CCO and police officer upon request'.
Upon the respondent's release on 5 March 2020, he was issued with a written lawful instruction by Ms Comery that outlined the expected detail of the information he was to record in his diary. It outlined an obligation that he maintain a daily diary of his movements, activities and associations, including the address of any property, residential, commercial or industrial, attended by him, the purpose of attendance at such an address, the duration of his stay at the address, the names of any individuals with whom he travelled, and the name and surname of any person he has an interaction with, excluding interactions required for commercial transactions.
The particular contraventions relate to three incidents.
The first incident
The first concerns contact that the respondent had with two persons, Mr RC and Ms CL, who had attended his home on 24 April 2020. The fact that they had attended his home was ascertained by Mr Jarvie from SOMS, who appear to have been able to obtain that information. The respondent had not made an entry in his diary about the attendance by those two people at his home on that date.
After ascertaining that the contact had occurred on 24 April 2020, Mr Jarvie contacted the respondent by telephone and asked whether those two people had attended his home. He said he could not remember when they had attended, but that they had attended. He also said that he, his partner and those two people had travelled in his vehicle to a restaurant in Wilson where they had collected takeaway food and returned to the respondent's residence. When asked why he had failed to enter those details in his diary, he said that he had forgotten.
Mr Jarvie gave the respondent the opportunity to disclose his circumstances to Mr RC and Ms CL. He was issued with a written lawful direction to not have any in person contact with Mr RC until the disclosure occurred. Mr Jarvie says that the respondent only partially completed the obligation, and that subsequently Mr Jarvie and another officer of the department made full disclosure of the respondent's circumstances to those persons. A written lawful direction was given to the respondent, prohibiting him from attending the home of those people or any home at which any of their children reside.
He was given a reminder of the condition that refers to contact with people under the age of 18 years and of the need for him to withdraw from any accidental or inadvertent contact with the children of those people.
The second incident
The second aspect of this failure to comply with the diary condition relates to an occasion when the respondent had stopped for a period of approximately five minutes whilst in transit between his parents' home and his own home in the same suburb. It seems the premises are 300 m apart. In any event, the respondent did not make an entry of that stop in his diary. When he was asked what he had done during that stop on 26 April 2020, he said that he had been talking to a staff member from his former high school. He said she was elderly. When asked why he had not recorded the contact in his diary, he could not provide an explanation. He did say, however, that he had been driving and that his partner was in the car with him at the time.
The third incident
The last of the incidents that was the subject of an alleged non‑compliance was when the respondent, Ms B and another woman were at Bunnings in Bayswater on 16 May 2020. The respondent and Ms B were seen there by Mr Jarvie, when he was there in private time. Mr Jarvie does not say in his affidavit that he saw the third person, but on 21 May 2020, during supervision at the East Perth Adult Community Corrections Centre, the respondent mentioned Bunnings a number of times in different contexts in a manner that raised Mr Jarvie's concerns about the respondent's attendance there. There is no need to comment in respect of that, but it was the trigger for Mr Jarvie informing SOMS about the matter. Inquiries were then made by police, which resulted in them obtaining a still image of closed‑circuit television footage from Bunnings. The image showed the respondent with Ms B and a second female on the date in question, 16 May 2020.
On 28 May 2020, during a supervision session, Mr Jarvie raised the matter with the respondent. He asked him who else he was with at Bunnings on the day in question. The respondent initially wanted to have a look at his diary to see what he had said in his diary. Mr Jarvie showed him the diary. When Mr Jarvie asked the respondent again if he was at Bunnings with anyone else on 16 May 2020, the respondent having failed to make any mention of the third person, the respondent paused for a time before saying, 'Might have been'. He then said that one of Ms B's friends might have been there and that, unfortunately, he did not put that in the diary. When pressed as to who it was, the respondent stated the person's name. When asked what had occurred on that occasion, the respondent went on to say that the lady had gone with him and Ms B to a restaurant, where they obtained takeaway food before returning home. The relevance of that, in my opinion, is that the respondent could not have simply forgotten the fact that the lady in question had been with them on that day, as it was more than simply a trip to Bunnings.
That is sufficient to outline the contraventions that are alleged to have occurred.
Conclusions to be drawn from the contraventions
In my opinion, the conclusions that can be drawn from the alleged contraventions at this stage, on a preliminary basis, are as follows.
First, it can be said that, prima facie, none of the contraventions appear to be related to an elevated risk of the respondent committing a serious sexual offence of the kind he has committed in the past, to which I referred in detail in D'Rozario. The only qualification to that conclusion is that we do not know what was in the text messages that were deleted from the respondent's phone, and whether any of them might have been relevant to the issue of risk.
The second point that can be made is that some of the respondent's behaviour had the quality of testing the boundaries of the undertaking. The respondent appears to want to test whether, in fact, particular conditions are applicable to him, rather than taking them at face value and ensuring that he complies with them strictly. Related to that is a potential conclusion that he has been resistant to the breadth of some of the conditions and the restrictions that they place on his activities and associations.
A further matter which is of some concern is that the respondent's interactions with his supervising CCO, Mr Jarvie, appear, at times, to have involved a distinct lack of candour. As I indicated in my reasons in D'Rozario, the need for the respondent to be honest and open in his communications and dealings with anyone who may be supervising him or providing him with psychological treatment is of the utmost importance.
Finally, a matter that is related to that last point is that the incidents that are described by Mr Jarvie also raise questions as to the reliability of the respondent's disclosures to those who are tasked with supervising him and monitoring his movements and activities within the community.
Whether it is appropriate to make an interim supervision order
The concerns to which I have referred might suggest that the respondent's compliance with an interim supervision order would be problematic.
In CA, I discuss the question whether it is necessary for the court to be satisfied, as required by s 17(3) of the Act in a div 2 hearing, that a respondent will substantially comply with the standard conditions of a supervision order, given that there is no similar provision in s 27A(5).
I expressed the view in CA that, even if the court is required to be satisfied that the respondent will substantially comply with the standard conditions of a supervision order, there could not be an obligation on the respondent to satisfy the court about that on the balance of probabilities, as required by s 17(3), given that, at this stage, he has not been found to be a serious danger to the community. The finding I have made is that there are reasonable grounds for believing that the court might find him to be a serious danger to the community.
However, I also said in CA that, for the court to be satisfied that the community could be adequately protected (which is an object of the legislation), it would need to be satisfied that the respondent would comply with the conditions of a supervision order.
It is not necessary to resolve in this case the questions that I identified in CA that remained open. No argument was sought from the parties in respect of those questions. That is because the applicant in this case does not submit that the alleged non‑compliance by the respondent in the various ways that I have outlined would preclude the court from finding that the respondent would comply with the conditions of a supervision order, substantially or otherwise.
The submission that has been made by the applicant, and is supported by the respondent, is that the consequences that would flow from a contravention of an interim supervision order, which include prosecution for an offence under s 40A, which would expose the respondent to a potential term of imprisonment, and the fact that he may be brought back before the court pursuant to contravention proceedings under the Act, which could result in an interim detention order being made, are sufficient to provide the additional incentive that the respondent may require to ensure that he complies strictly with the conditions of an interim supervision order.
On the respondent's behalf, it was also submitted that the delay that has been occasioned in respect of the hearing of the div 2 application is not the respondent's fault, and it would be unfair if he were now to be detained for a significant period of time in light of that delay. I accept that there is force to that argument, although ultimately my primary concern is to determine what is sufficient to protect the community in the interim.
That is particularly so, as Dr Hall, in the report he has prepared pursuant to s 37 for the div 2 hearing, has expressed the opinion that the respondent poses a high risk of sexually offending in the same manner as he has offended in the past. While that evidence remains to be elaborated and tested at the div 2 hearing, it is nevertheless evidence before this court at this stage to which no objection was taken.
It was pointed out on behalf of the respondent that he has engaged with a psychologist, on a private basis,[2] for ongoing treatment in respect of the issues relevant to his risk of reoffending. Counsel for the respondent submitted that became necessary because, in his view, there had been an abrogation by the Department of its responsibilities in relation to the respondent's treatment. In my view, it is inappropriate to make any comment in that regard, and I do not accept that submission, in circumstances where the Department has not had an opportunity to be heard about that matter. It has to be recalled that the respondent was not subject to the provisions of the Act once he was released from custody. Rather, he was subject to an order of the court, which included conditions that required him to be subject to supervision by the Department, and placed other obligations and restrictions upon him.
[2] In other words, he is paying for the treatment.
What is important, and I accept that it is a factor in favour of making an interim supervision order, notwithstanding the alleged contraventions of some conditions of the undertaking, is the fact that the respondent has demonstrated a commitment to addressing his treatment needs in respect of his risk of reoffending.
I note however that, in the event that an interim supervision order is made and the respondent thereby becomes subject to the provisions of the Act, consideration will need to be given to whether psychological treatment from a psychologist with the Department would be appropriate. As I have not heard any evidence about that matter in these proceedings, I say nothing more about it.
Ultimately, I have come to the view that I should accept the primary submission made by the applicant that the appropriate order at this stage is an interim supervision order, and that the respondent should be discharged from the undertaking.
The order that is proposed is comprehensive. It will be annexed to these reasons. It largely replicates the conditions of the undertaking, but there are some additional conditions and some of the conditions that were in the undertaking have been amended. One condition that was in the undertaking was deleted by an order made by me, in accordance with a minute of consent orders, after the respondent was released on the undertaking. The condition that was deleted was one prohibiting the respondent from approaching within 100 m of a school, childcare centre or park where children may be present. It was decided by the Department that that issue could be better dealt with by way of lawful directions from the CCO specifying exclusion zones.
It is not necessary to go into the details of the conditions of the supervision order. In my view, they provide adequate protection of the community, as long as the respondent complies. It seems to me that the breadth of the conditions, and the ability of those who are tasked to monitor the respondent to be able thereby to detect at an early stage any behaviour which might suggest an elevation of his risk, will provide adequate protection of the community at this stage.
In coming to that view I have had regard to the reasons I gave in D'Rozario, at [166] to [183], for concluding that it was appropriate to release the respondent on an undertaking once he had completed his term of imprisonment. In my view, those reasons remain valid, notwithstanding the alleged contraventions of the undertaking to which I have referred.
I am satisfied, therefore, that it remains appropriate to release the respondent in the community, subject to conditions.
I was informed by the respondent's counsel that he has been left in no doubt about the potential consequences of any future breach, and that he well appreciates that this may be a final opportunity to demonstrate that he will be capable of complying with the very strict conditions of a supervision order. The court would expect that a failure by him to do so in any significant way, and especially in a repeated manner, would result in the respondent being brought back before the court and being prosecuted for an offence under s 40A of the Act.
The need to adjourn the application for an interim detention order
In CA, at [47] and [48], I identified an issue concerning the manner in which a person who is subject to an interim supervision order made under s 27A of the Act, and who is brought back before the court pursuant to the contravention provisions of the Act,[3] is to be dealt with. In particular, the orders provided for in s 23 are of a final nature and apparently inapt for a person who has not yet been found to be a serious danger to the community. As the application of the provisions of s 23 may be uncertain, the applicant sought an order adjourning the application for an interim detention order, so that it can provide the basis for consideration of such an order if there is a contravention of the interim supervision order by the respondent. I agree that to be the appropriate course to take.
[3] Sections 21 to 24 of the Act.
Orders
In the circumstances therefore, I make the following orders, which give effect to the orders sought in paragraphs 1 and 2 of the application and the request for the adjournment of the application insofar as it concerns paragraph 3:
(1)With effect from 4 June 2020 and until the pending proceedings are finally determined, the respondent is to be subject to the conditions in the supervision order annexed to these orders.
(2)Subject to the respondent signing the supervision order, he will be discharged from the undertaking signed by him on 5 March 2020.
(3)The application for an interim detention order under s 4(2)(b) of the Dangerous Sexual Offenders Act 2006 (WA) is adjourned sine die.
The supervision order is Annexure 1 to these reasons.
Annexure 1
SUPERVISION ORDER MADE BY
THE HON JUSTICE FIANNACA ON 3 JUNE 2020
The Court, being satisfied that there are reasonable grounds for believing that the Court might, under s 7(1) of the Dangerous Sexual Offenders Act 2006 (the Act), find that the Respondent is a serious danger to the community, and having made orders under sections 14(1) and 14(2) of the Act, orders that the Respondent be the subject of an interim supervision order pursuant to s 27A of the Act, from 4 June 2020 until the final determination of the application for orders under s 14 and 17(1) of the Act or until further order of the Court, on the following conditions:
You, PAUL ANTHONY D' ROZARIO, must:
STANDARD CONDITIONS REQUIRED BY THE ACT
1.Report to a Community Corrections Officer at the place and within the time stated in the order and advise the officer of your current name and address.
2.Report to and receive visits from, a Community Corrections Officer as directed by the court.
3.Notify a Community Corrections Officer of every change of your name, place of residence, or place of employment at least 2 business days before the change happens.
4.Be under the supervision of a Community Corrections Officer, which includes complying with any reasonable direction of the officer (including a direction for the purposes of section 19A or 19B).
5.Not leave or stay out of the State of Western Australia without the permission of a Community Corrections Officer.
6.Not commit a sexual offence as defined in the Evidence Act 1906 section 36A during the period of the Order.
7.Be subject to electronic monitoring under section 19A.
ADDITIONAL CONDITIONS
Residence
8.Take up residence at [address stated] and spend each night at that address or at a different address only if such different address is approved in advance by a Community Corrections Officer (CCO) assigned to you;
Reporting to a CCO and supervision by a CCO
9.Report to and receive visits from the CCO at times and at places as directed by the CCO, such arrangements having regard to any employment commitments;
10.Report to a CCO at your nominated release address within normal business hours on the day of release to this order;
11.Be under the supervision of a CCO and comply with the lawful orders and directions of a CCO;
12.Not commence or change paid or unpaid employment, education, training or volunteer work without the prior approval of the CCO;
Reporting to WA Police
13.Report to the Officer‑in‑Charge of the Sex Offender Management Squad (SOMS) at [address stated] within 48 hours of your release to this Order and thereafter report to and receive visits from Police at times and at locations as directed by the Officer‑in‑Charge of the Sex Offender Management Squad or his/her delegate;
14.Comply with all obligations imposed on you pursuant to the Community Protection (Offender Reporting) Act 2004;
15.If requested, permit Police Officers to enter and search your residence and/or vehicle, or your person for the purpose of monitoring your compliance with your obligations under this order and allow the seizure of any such items that the Police Officer believes to contravene the conditions of the order;
16.Remain at your residence and/or vehicle when Police Officers conduct a search of your residence and/or vehicle under the Dangerous Sexual Offenders Act 2006;
17.When requested, advise Police of the names of all of your internet service providers, all mobile or landline telephone services used by you and all internet user names or identities used by you;
Disclosure/Exchange of Information
18.Agree to the exchange of information between persons and agencies involved in your supervision, including otherwise confidential information. This does not include any medical practitioner, psychologist, psychiatrist or counsellor that you may see of your own volition for the purposes of defending application DSO 1 of 2020;
19.Allow the CCO, WA Police , or other person or agencies approved by the CCO, to (i) interview any associates or potential associates and (ii) disclose to them confidential information including your offence history;
Restrictions on contact with Victims
20.Have no contact, directly or indirectly , with the victims of your sexual offending, unless such contact is conducted in accordance with agreements made through, or approved by, the Victim ‑ Offender Mediation Unit of the Department of Justice, or in a manner approved of in advance by the CCO;
21. Unless contact with victims is permitted pursuant to the previous condition, you must immediately physically withdraw from any situation or immediate location in which contact is made with any victim of your sexual offending (including being in the immediate presence of any victim), without engaging in conversation with any victim whether by word or gesture, and must avert your gaze from such victim at all times;
22.Report to the CCO and WA Police any direct or indirect contact with the victims of your sexual offending within 48 hours of such contact occurring;
Criminal conduct
23.Not breach any provision of or commit any offence under the Restraining Orders Act of 1997;
24.Not commit any criminal offence where the maximum penalty for which includes imprisonment, and which involves either violence, threats of violence, or the possession of weapons or offensive instruments;
25.Not commit an offence under s 202, s 203 or s 204, s 204A, s 204B, s 217, s 218, s 219, s 220 or s 557K Criminal Code 1913 (WA);
26.Not commit any offence under the Classification (Publications, Films and Computer Games) Enforcement Act 1996;
Curfew
27.Be subject to a curfew, pursuant to s 19B of the Dangerous Sexual Offenders Act 2006, such that you are to remain at and not leave your approved address as directed by a CCO from time to time;
28.When subject to a curfew under this order, present yourself for inspection at the front door or curtilage of your approved address, or speak on the telephone to any CCO or Police Officer or their agent monitoring your compliance with the curfew;
29.When subject to a curfew under this order, you must ensure that all those people present in the residence who may answer the telephone or door are aw are as to your obligations and request their assistance to comply with your obligations by alerting you to such attempts to contact you by persons monitoring your compliance with the curfew;
Medications/Mental Health
30.Attend any medical practitioner, psychologist, psychiatrist or counsellor as directed by the supervising CCO;
31.Permit any medical practitioner, psychologist, psychiatrist or counsellor to disclose details of medical treatment and opinions relating to your level of risk or risk of re‑offending and compliance with treatment to the Department of Justice;
Prevention of high-risk situations
32.Have no contact with any child under the age of 18 years, whether such contact is in person, in writing, by telephone or by electronic means, unless:
(a)The contact is authorised in advance by the CCO and such contact is supervised at all times by an adult approved in advance by the CCO;
(b)The contact is necessary to complete a commercial transaction and limited to the minimum contact required to complete the transaction, and another adult is present;
('Contact' under this condition and the following two conditions means any form of interaction or communication whether by word, gesture, expression or touch and whether in person, in writing, by telephonic or electronic means, but does not include the bare minimum of interaction or communication necessary between an adult and child to promptly and civilly terminate any inadve1tent or uninvited interaction or communication);
33.Where any unsupervised contact with a child under the age of 18 years is initiated by the child, unless the contact is permitted under condition 32, you must withdraw immediately from the presence of the child;
34.Provide details of any contact with a child under the age of 18 years to both your CCO and the Police on the next occasion you report to that person or agency;
35.On the next occasion you report to your CCO, report the formation of any friendship, domestic, romantic, sexual or otherwise intimate relationship by you with any person;
36.Not form any domestic relationship with a person who has a child or children under the age of 18 years in their care either full time or part time;
37.As directed by a CCO, make full disclosure regarding your past offending and this Order to anyone with whom you commence a friendship, domestic, romantic, sexual or otherwise intimate relationship, which disclosure can be confirmed by a CCO or a Police Officer;
38.Have no contact with, membership of or affiliation with clubs, associations or groups where membership includes children, unless approved in advance by a CCO; and to cease/cancel such memberships if directed to do so by a CCO or Police Officer;
39.Not to associate with any person known to you to have committed any sexual offence, unless such association is authorised in advance by the CCO;
40.Not possess, consume, use, or purchase alcohol unless approved in advance by a CCO;
41.Not possess, consume, or use any prohibited drugs, plants or other substances to which the Misuse of Drugs Act 1981 applies, unless the drug has been prescribed for you by a person duly authorised under the Medicines and Poisons Act 2014 and your use is in accordance with the instructions of the prescriber;
42.Attend for and submit to urinalysis or other testing for alcohol or prohibited drugs as directed by the CCO or a Police Officer, including accompanying such person to an appropriate location for such testing to take place;
43.Provide a valid sample for testing pursuant to condition 42;
44.Advise a CCO of every computer, telecommunication and/or electronic device capable of storing digital data or information possessed or used by you, whether or not it is capable of being connected to the internet, and the location of that device;
45.Not access the internet on any computer, telecommunication or other electronic device capable of internet access unless such access is supervised at all times by a person approved in advance by a CCO and for a purpose approved in advance by a CCO;
46.Not delete or otherwise remove and/or disguise, or cause or allow to be removed and/or disguised by another person, any data including but not limited to calls, Short Message Service (SMS), search histories or logs capable of identifying your activities on that computer, telecommunications and/or electronic device, whether or not the device is capable of connecting to the internet, without the approval in advance by a CCO or WA Police.
47.Upon request, permit a CCO or WA Police at any location nominated by them, to access any computer, telecommunication and/or device capable of storing digital data, for the purpose of ascertaining your computer, telecommunication and/or electronic device related activities, and provide to the CCO or WA Police upon request any passwords or any other means used to unlock or access the device; Should any other entity be required to access a device for instances such as technical advice, approval must be sought in advice from a CCO;
48.With respect to any of your computers, telecommunication and/or electronic devices, enable device locking , pin, or password protection of that device and not provide any pin, passwords, or any other device locking means required for such access to anyone other than Police or a CCO;
49.Not join, access, register, or use any social media applications, programs or services without the prior approval of a CCO;
50.Not to share or access any computer, telecommunication and/or electronic device of another person or organisation, unless such access is approved in advance by the CCO;
51.Not conduct computer searches for, access data containing , nor collect or possess in either electronic or permanent form, images of children, whether indecent or not;
52.Not be in present possession of any children's toy, game or confectionary capable of constituting an enticement to children, unless such possession is for a legitimate purpose;
53.Maintain a daily diary of your movements, activities and associations if and as directed by the CCO and present this diary to the CCO and Police Officer upon request.
54.Make yourself available to a CCO or to the court‑appointed experts for any consultation required of you in relation to the preparation of reports or other evidence to be given to the court at the Division 2 hearing.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
YO
Research Orderly to the Hon Justice Fiannaca8 JUNE 2020
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